Resolving "move away" custody issues

California law requires parents involved in a divorce to submit a jointly drafted parenting plan to the court. Working out a child custody and visitation plan can be an arduous task for one or both parents. Regardless of the effort invested by the parents, such a plan can be rendered useless if the custodial parent decides to move to another city or another state and take the children along. What happens then?

The answer depends upon several factors. Most important is the type of custody awarded by the court in the divorce proceeding. A parent who has been awarded sole physical custody (or primary physical custody) generally has the right to move away with the children unless the other parent can demonstrate that such a move would harm the children. If custody is joint, neither parent can move and take the children if the other parent objects. The parent who wishes to move can overcome such an objection by showing that the move would be in the best interests of the children.

As with most issues in a divorce, the parents and the children will be better off if the parents can work out their differences amicably. Unfortunately, some couples are unable to do this, and the court will be asked to intervene. Most judges in California will look at the actual parenting arrangement that the parents have been using and will make whatever changes appear to be necessary to protect the child's best interests. Courts will not approve the uprooting of children without a persuasive demonstration that the move will not cause undue harm.

Move away issues can sometimes be addressed in the parenting plan if one or both parents think that a move may be required in the future to keep a job. In any event, the advice of a seasoned divorce attorney can be very helpful in resolving this very painful issue whenever it occurs.

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